2007 S C M R 108
[Supreme Court of Pakistan]
Present: Sardar Muhammad Raza Khan and Raja Fayyaz Ahmed, JJ
MUHAMMAD ISHAQUE----Appellant
Versus
THE STATE----Respondent
Criminal Appeal No.115 of 2004 and Jail Petition No.246 of 2002, decided on 8th August,
2006.
(On appeal from the judgment, dated 10-6-2002 passed by the Lahore High Court
Rawalpindi Bench, Rawalpindi in Criminal Appeal No.498 of 2000).
Penal Code (XLV of 1860)---
----Ss. 302 & 324---Reappraisal of evidence---Previous enmity---Conflict between ocular
and medical evidence---Effect---Trial Court convicted accused/appellant under Ss.302 &
324, P.P.C. and sentenced him to life imprisonment---High Court on appeal upheld the
finding of Trial Court---Validity---Prosecution failed to explain delay in lodging F.I.R.---
Complainant allegedly witnessed the murder of his real brother but in spite of that he did
not go to police station to promptly lodge F.I.R.---Enmity between accused and complainant
including eye-witnesses having been proved, the ocular testimony of complainant side
required strong support from unimpeachable source of evidence---Prosecution sought
corroboration from motive but in presence of proved enmity between the parties, motive
was to cut both ways and was to be equally a motive for false charge---Gun recovered from
possession of accused was not to be taken as a corroborative evidence as the same was
licensed one and, moreover, gun did not match with all the four empties allegedly recovered
from place where accused fired at the deceased---Site plan showed that deceased was fired
at from a distance of 132 feet but there was ' burning on all four inlet wounds of deceased---
Burning on wounds was to occur when muzzle was at a distance of 5 to 6 feet from victim;
and burning from a distance of 132 feet was not possible---Nature of injuries caused to
deceased belied the prosecution version as to distance from which deceased was fired at---
Neither any pellets were recovered from premises (mosque) nor any child receiving lesson
from complainant was ever examined---Accused was acquitted in circumstances.?
Ch. Afrasiab Khan Advocate Supreme Court with M.A. Zaidi, Advocate-on-Record for
Appellant (in both cases).
Mehmood A. Sheikh, Advocate Supreme Court for the State.
Date of hearing: 8th August, 2006.
JUDGMENT
SARDAR MUHAMMAD RAZA KHAN, J.--- Leave has been granted to Muhammad
Ishaque son of Ghulam Din against the judgment dated 10-6-2002 rendered by a learned
Judge in Lahore High Court, Rawalpindi Bench, whereby his appeal against conviction and
sentence was rejected. Initially, learned Additional District and Sessions Judge, Gujar Khan
vide judgment, dated 31-10-2000 had convicted the appellant under section 302, P.P.C. and
sentenced him to life imprisonment and to a payment of Rs.1,00,000 as compensation under
section 544-A, Cr.P.C. He was also convicted under section 324, P.P.C. and sentenced to
imprisonment for five years with a fine of Rs.10,000.
2. The background of the occurrence given by Zafar Iqbal complainant is that, on 19-4-1999
at about 6-15 a.m. he was giving lesson to children in the village mosque when Muhammad
Ishaque appellant called him from the rooftop of one Talib Hussain asking the complainant
to come out of the mosque. On second call the complainant replied that he would come out
after completion of Daras. On third call he came out to the courtyard of the mosque with the
same answer. The appellant descented from the rooftop, went to his house, returned while
armed with a .12 bore shotgun and fired three shots at Zafar Iqbal, hitting the outer wall and
the right side of the outer gate.
3. Hearing the report of fire shots Shaukat Ali, the brother of the complainant ascended the
rooftop of the house of Ali Qadar and forbade Muhammad Ishaque from firing. Muhammad
Ishaque turned towards Shaukat Ali and fired at him hitting him on his chest. The victim
died on the spot. The occurrence, besides complainant, was said to have been witnessed by
Manga Khan and Ali Qadar. The motive is, that about a year prior to the occurrence,
Muhammad Ishaque had lodged a report under section 337-A, P.P.C. against the
complainant as well as Shaukat Ali, the deceased. A day prior to the occurrence i.e. on 18-4-
1999 Shaukat Ali deceased and Muhammad Ishaque accused had quarrelled with each other
on a dispute over a path. The complainant had intervened to settle the matter.
4. On conclusion of trial, the prosecution relied upon the ocular testimony of Zafar Iqbal
P.W.4, Ali Qadar P.W.5 and Manga Khan P.W.6. Further support is sought from the post-
mortem report, recovery of .12 bore shotgun at the instance of the accused, on 24-5-1999. It
may be recalled that the occurrence having taken place on 19-4-1999, the accused was
arrested on 17-5-1999 while the discovery of gun occurred on 24-5-1999. Admittedly, it was
a licensed shotgun.
5. It is a fact proved on record that not only the complainant but also the two eye-witnesses
have direct enmity with the accused and a case already stood registered against them under
section 337-A, P.P.C. at the instance of the wife of Muhammad Ishaque appellant. In this
background of proved enmity, the ocular testimony of all the three witnesses would require
strong support from unimpeachable source. Whether such corroboration is available or not,
is the important exercise to be adhered to.
6. Beginning from Zafar Iqbal, one may recall that he was allegedly fired at three shots
from .12 bore shotgun by the appellant, from a distance of 160 feet. In spite of a wide
dispersal in view of the distance involved, the complainant escaped totally unhurt. This
cannot be overlooked on the argument of being a coincidence because in almost the same
distance, the assailant killed Shaukat Ali with just one fire shot. We inculcate doubt qua the
presence of complainant in the mosque. No pellets were recovered from the mosque and no
child receiving lesson from the complainant was ever examined.
